Clarifications regarding prosecution under the Central Excise and Salt
Act, 1944
Circular
No. 30 dated 4th April 1994
I
am directed to refer to Board�s F.No. 218/7/89-CX.6 dated 9.8.1990 regarding
guidelines for launching prosecution under the Central Excise and Salt Act,
1944.
2.
Instructions contained in the aforesaid letter envisage that before
launching any prosecution, it is necessary that the department should have
evidence to prove that the person, company or individual had guilty knowledge of
the offence or had fraudulent intention to commit the offence or in any manner
possessed mens-rea (mental element) which would indicate his guilt. The letter
further emphasises that prosecution once launched, should be vigorously
followed.
3.
Consequent to issue of above guidelines Board has received references
regarding the procedure to be followed for withdrawal of prosecution on the
ground that certain factors like weak evidence on records; age of the accused
and prompt payment of duty; fine and penalty etc., have come to the notice of
the department after a decision has already been taken to launch the prosecution
or the complaint filed in the court.
4.
The issue has been examined by the Board in consultation with Ministry of
Law. Ministry of law has opined that the authority to withdraw prosecution
should rest with an authority superior to the authority, which approves
launching of prosecution. However, where the complaint has already been filed in
the court, the discretion to allow withdrawal of prosecution ultimately rests
with the court.
5.
In view of above it has been decided that where a decision has been taken
by the concerned principal. Collector to prosecute entity or a corporate body
but the complaint has not been filed in the court and in the interim period
however facts come to the notice of the Principal Collector which are against
initiating prosecution, in such cases Principal Collectors may recommend to
Board for considering the withdrawal of prosecution.
In
cases where a complaint has already bee filed in the court, it will be upto the
court to decide whether or not to pursue prosecution in terms of Section 257 and
321 of Cr. P.C. 1973. If the order for withdrawal has been given by a court, the
prosecution can be withdrawn by the Assistant Collector after getting a formal
order from the Principal Collector.
6.
Board desires that each case for withdrawal of prosecution should be
closely scrutinized by the Principal Collector concerned and if found fit he
should forward it with his recommendation for Board�s consideration. It is
however reiterated that in cases where complaint is already filed by the court
it is for the court to pass the order.
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